Lemen v. Kansas Flour Mills Co., No. 26,911

No. 26,911 | Kan. | Feb 12, 1927

The opinion of the court was delivered by

Mason, J.:

In 1893 as a part of the statute giving the owner a right to redeem real estate sold at sheriff’s sale, a^ section of the code of civil procedure requiring the appraisement of realty taken on execution was repealed. Another section forbidding a sale by the sheriff for less than two-thirds of the appraisement, and several other sections assuming the existence of an appraisement, remained unrepealed. This court held in 1905 that notwithstanding the unrepealed provisions such as that in terms forbidding a sale for less than two-thirds, of the appraisement, no appraisal was required. When the code Was revised in 1909 the section requiring appraisement in the case of all executions was not reinserted, but a section relating to writs directing the sale of property previously taken in execution and requiring the seizure of additional property if the sheriff thought that already taken insufficient, was amended by adding a requirement that he should cause the real estate to be appraised. This court held, affirming the trial court, that the amendment just referred to affected only writs of the exceptional character indicated and that no appraisement was required in the case of the realty here involved, which was seized and sold on an ordinary execution.

In a motion for a rehearing the appellants ask a further elucidation of the grounds .of our decision, with respect to a paragraph of the original opinion reading as follows:

“It is argued that the retention in the statute of the large number of references to an appraisement, all apparently assuming that one is to be made, shows a legislative purpose to that effect. That proposition was involved in Armstead v. Jones, supra, and the decision was against it. It is contended, however, that the reenactment of these sections in the revision of 1923, with the change already discussed, made in 1909, puts a different face on the matter and requires a holding to the contrary. This reenactment seems to us to show merely that the legislature saw no occasion for a change in the law as it stood, and we do not think it requires or justifies any different interpretation from that previously adopted.” (Lemen v. Kansas Flour Mills Co., ante, pp. 114, 117.)

It will be observed that the reenactment referred to in the quoted paragraph is that of 1923. In the motion for a rehearing the discussion in this connection seems to be directed largely to the code revision of 1909. This is mentioned because somewhat different questions are involved with reference to the two reenactments.

In the motion for a rehearing it is said:

“The legislature had repealed a section of statute leaving others cognate with it unrepealed. The court held that the unrepealed sections were appendant to the one repealed in such sense that they had become obsolete, that is likewise repealed. Subsequently the legislature reenacted the obsolete or repealed sections, as to one of them adding a new provision (R. S. 60-3413) in furtherance of the general policy of th'e law or the policy of the restored law or the policy of a particular section of it. Subsequently the legislature enacted an entirely hew provision (R. S. 60-3439) in seeming recognition of the restoration of the appraisement policy of the old law. [As mentioned in the original opinion this enactment was in 1923, and the execution here involved was issued in 1921.] The court, however, dismisses these legislative enactments subsequest to the repeal by saying, ‘they seem to [the exact language of the opinion is, “This reenactment seems to” — the reference being to that of 1923] show that the legislature saw no occasion for a change in the law as it stood/ and hence that, -‘we do not think it requires or justifies any different interpretation from that previously adopted/ This is an impossible view to take.”

We part company with the writers of the motion upon the proposition — the foundation of their argument — that the court in saying the unrepealed provisions of the code relating to appraisement were obsolete, established that they had been repealed. The court had no such thought. Quite possibly the word “obsolete” may not have been the best selection to express the idea that these provisions were inoperative but not entirely nonexistent. It was used, however, in the sense in which it is defined in Bouvier’s dictionary: “A term applied to laws which have lost their efficacy without being repealed.” We conceive the provisions in question were in what might be called a state of suspended animation. They were in the statute ready for use whenever the provision on which they depended was restored. If the legislature in revising the code had reinserted the section requiring appraisement or its equivalent, the section forbidding a sale for less than two-thirds of the appraisal (as well as other provisions dependent thereon) would at once have become operative. Instead of this change being made, however, there was added to the existing statute a provision that an appraisement should be had in the exceptional kind of execution already described. We think the intention and effect of this was to revive the operation of the provisions relating to appraisement only with respect to executions of that character. The attention of the legislature having been directed to the matter of appraisement, and it having chosen to restore it only in a limited class of cases, we see no room to interpret its course as reinstating the original law.

In the motion it is further said:

“The court says the reenactment of the repealed law did not make any change from the law that followed its repeal. The repeal still stood, the sections still obsolete. If that was the case, why go through the form of reenacting it?”

Again we think counsel err in saying the provisions which the court spoke of as obsolete had been repealed. They were for the time being inoperative for want of a provision for the appointment and service of appraisers. The obvious answer to the question, “why go through the form of reenacting” provisions in this condition is that the legislature was revising in 1909 the code of civil procedure and in 1923 the General Statutes, reenacting each as a whole, changing some sections and leaving others unchanged. The reenactment of a section without change in the course of a revision does not indicate as a matter of fact or of law a purpose to alter its effect. But the statute specifically provides: •

“The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (R. S. 77-201, subdiv. 1; R. S. 77-112.)

By virtue of this rule statutes passed at different times which are included in the same revision without change continue their original relative status as to time of enactment and are interpreted in the light of their origin. (Arkansas City v. Turner, 116 Kan. 407" court="Kan." date_filed="1924-06-16" href="https://app.midpage.ai/document/city-of-arkansas-city-v-turner-7907114?utm_source=webapp" opinion_id="7907114">116 Kan. 407, 226 Pac. 1009.)

It is urged that the conclusion of the court is inconsistent with the decision in State, ex rel., v. Davis, 116 Kan. 663, 229 Pac. 757. There it was argued that a statute included in the revision of 1923 was invalid because an act in the same words had been repealed in 1909 and its inclusion in the revision was an inadvertence. The court held that it was competent for the legislature to insert wholly new matter in the Revised Statutes, and that matter which had at one time been in the statutes, but which prior to the revision had been repealed, stood on no different footing. The supposed analogy to the present case appears to be based on the conception already discussed, that the provisions of the code which the court held inoperative because of the repeal of the section providing for appraisers and appraisement had themselves-been repealed.

The motion for a rehearing is overruled.